CITATION: Democracy Watch v. Ontario Integrity Commissioner, 2020 ONSC 6081
DIVISIONAL COURT FILE NO.: 548/19
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lederer, D. Edwards JJ.
B E T W E E N:
Democracy Watch
Applicant
Rebecca Shoom, for the Applicant
- and -
Ontario Integrity Commissioner
Respondents
Justin Safayeni and Stephen Aylward, for the Respondent, Ontario Integrity Commissioner
HEARD: September 28, 2020
REASONS FOR JUDGMENT
D. Edwards J.
Overview
[1]. The Integrity Commissioner conducted an inquiry under the Members’ Integrity Act, 1994 (the “MIA”), and in March 2019 released a report into the conduct of Premier Doug Ford in relation to the appointment of Ron Taverner as the new Ontario Provincial Police Commissioner (the “Ford Report”). The Ford Report included observations about the conduct of Dean French (who was then Chief of Staff to the Premier), Steve Orsini (then Secretary of the Cabinet), Derek O’Toole (Senior Policy Advisor to the Chief of Staff) and Greg Harrington (then Policy Advisor to the Chief of Staff).
[2]. The Applicant requested the Integrity Commissioner and the Conflict of Interest Commissioner to make public, formal determinations under Part IV of the Public Service of Ontario Act, 2006 regarding the conduct of French, Orsini, O’Toole and Harrington. The Commissioners declined to do so.
[3]. The Applicant seeks judicial review of the Integrity Commissioner’s refusals and asks that the court order the Integrity Commissioner to issue public determinations in these matters. Alternatively, the Applicant asks that the court direct the Commissioner to make inquiries into the individuals’ conduct, and then issue public determinations.
[4]. The Respondent seeks to dismiss the application.
[5]. For the following reasons, the application is dismissed.
BACKGROUND:
Legislative Background
Members’ Integrity Act, 1994, S.O. 1994, c. 38
[6]. The MIA establishes the office of the Integrity Commissioner, who is an officer of the Legislative Assembly. Under s. 30, any member of the Assembly “who has reasonable and probable grounds to believe that another member has contravened this Act or Ontario parliamentary convention may request that the Commissioner give an opinion as to the matter.”
[7]. The Commissioner, after such a request, “may conduct an inquiry, after giving the member whose conduct is concerned reasonable notice”1.
[8]. Where the matter is referred by a member, the Integrity Commissioner has the powers under ss. 33 and 34 of the Public Inquiries Act, 2009, which include the power to issue summonses.2
[9]. The Integrity Commissioner must report his opinion to the Speaker of the Legislative Assembly, regardless of the disposition of the inquiry.3 The Speaker must then lay the opinion before the Assembly.4
Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A (“PSOA”)
[10]. The PSOA governs the relationship between Ontario and its public servants. Part IV of the PSOA is entitled “Ethical Conduct.” Sections 66-69 apply to public servants who work or used to work in a minister’s office, while ss. 57-65 apply to the rest of the public service.5
[11]. Under Part IV, each public servant has a designated “ethics executive”, who is responsible for addressing conflicts and potential conflicts of interest. There are many ethics executives spread throughout the public service.
[12]. “The ethics executive may make such inquiries as he or she considers appropriate in response to a request, a notification or where the ethics executive has concerns that a conflict of interest rule has been or is about to be contravened by a public servant or former public servant.” 6
[13]. Section 65(1) and (2) provides that a request may be made to the ethics executive by a public servant, a former public servant, or a supervisor of a public servant for an inquiry.
[14]. Section 69(4) contains similar provisions for minister’s staff.
[15]. Following an inquiry, the ethics executive can issue a “determination”, which may include directions to the public servant to address the conflict of interest.7
[16]. Section 70 provides that a public servant who breaks a conflict of interest rule, or who contravenes s. 65 or s. 69 direction, is subject to discipline, including suspension or dismissal.
[17]. The Integrity Commissioner is the ethics executive for public servants employed in ministers’ offices.8 Before May 2019, the Conflict of Interest Commissioner was the ethics executive for present and former secretaries to Cabinet.9 In May 2019, the Conflict of Interest Commissioner’s role was merged with the Integrity Commissioner’s.10
Factual Background
The Ford Report
[18]. In December 2018, two members of the Legislative Assembly complained to the Integrity Commissioner regarding the conduct of Premier Doug Ford, alleging potential ethics violations in the appointment of Ron Taverner as Commissioner of the Ontario Provincial Police. The Integrity Commissioner conducted an inquiry. He interviewed 21 witnesses, including Dean French, Derek O’Toole, Greg Harrington, and Steve Orsini. Orsini appeared pursuant to a summons. He and French were represented by counsel.
[19]. In March 2019, the Commissioner released the Ford Report. He concluded that the Premier did not breach any section of the MIA. He also noted that French, O’Toole, Harrington, and Orsini provided preferential treatment to Taverner throughout the appointment process.
[20]. Mr. Orsini resigned before the Ford Report was released. Mr. French and Mr. Harrington resigned shortly thereafter.
Democracy Watch’s Correspondence
[21]. On March 25, 2019, the Applicant wrote to the Integrity Commissioner and the Conflict of Interest Commissioner. The Applicant asked the Integrity Commissioner to make public rulings as to whether the conduct of French, O’Toole, and Harrington had violated conflict of interest rules under the PSOA. The Applicant relied on the findings in the Ford Report.
[22]. The Applicant made the same request to the Conflict of Interest Commissioner with respect to Orsini.
[23]. Both Commissioners refused the Applicant’s requests.
[24]. The Applicant continued to correspond with the Integrity Commissioner, who by this time had assumed the Conflict of Interest Commissioner’s duties. Unsatisfied with the Commissioner’s responses, the Applicant issued this application for judicial review.
Preliminary Issues:
[25]. The Respondent raises two preliminary issues: justiciability and standing.
Standing
[26]. The Applicant seeks public interest standing. The Respondent submits this standing should be denied.
[27]. The parties agree that the governing test for public interest standing is set forth in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society.11
[28]. The court is required to consider three factors, namely:
a. whether there is a serious justiciable issue raised;
b. whether the Applicant has a real stake or a genuine interest in the outcome; and
c. whether, in all the circumstances, the proceeding is a reasonable and effective way to bring the issue before the courts.
[29]. The parties agree that the Applicant has a genuine interest in the case but disagree as to whether the other two factors are satisfied.
[30]. I will deal first with the issue of whether the proposed suit is a reasonable and effective way to bring the issue before the court.
In all the circumstances, is the proceeding a reasonable and effective way to bring the issue before the courts?
[31]. The Respondent submits that granting public interest standing in this case would undermine the legislative scheme set out in the PSOA. Unlike other statutes governing investigative bodies, there is no mechanism in the PSOA for a public complainant. The people who may make a request under Part IV of the PSOA are limited to present and former public servants or their supervisor. Allowing any member of the public to bring an application to review the determination of any ethics executive would be inconsistent with the employment relationships governed by Part IV of the PSOA.
[32]. The Applicant responds that granting standing will uphold the principle of legality. In addition, there is no other way to resolve these issues, because there is no individual litigant or person directly affected who is likely to bring an application. Nor is there another way for Democracy Watch to address its concerns, because attempts to resolve this issue informally with the Commissioner have failed.
Analysis
[33]. For the following reasons I conclude that this proceeding is not a reasonable and effective way to bring the issue before the courts.
[34]. Part IV of the PSOA does not contain a public complaints mechanism. Instead, it sets out four specific ways by which an inquiry may be triggered:
a. by a current or former public servant making a request for a determination;12
b. by the public servant’s supervisor making a request for a determination;13
c. by a current or former public servant providing a notice of conflict of interest;14 or
d. by the ethics executive commencing an inquiry on his/her own initiative.15
[35]. There is no provision in the statute that allows for a public complaint to request an inquiry. Statutes with a public complaints mechanism typically impose a duty on the investigative agency to investigate or at least consider whether to investigate.16 The Legislature has imposed no such requirement in respect of inquiries by the Commissioner under Part IV of the PSOA.
[36]. Only two parties may request an inquiry: the employee (the public servant) and the employer (the supervisor). Although the ethics executive may on his/her own initiative commence an inquiry, no other body or entity has the statutory right to request an inquiry.
[37]. This is consistent with the employment-oriented ethics regime of Part IV of the POSA, outlined above.
[38]. In another employment context, this court, in Dolan v. Ontario (Civilian Commission on Police Services), concluded that, where the statute specified who may make a request, others could not do so. The statutory scheme at issue in Dolan, like Part IV of the PSOA, did not contain a public complaints mechanism.
[39]. The fact that the individuals who would be entitled to trigger an inquiry may not do so, does not, in these circumstances, mean that a judicial review by a third party is a reasonable and effective means of so doing.
[40]. I find that it would undermine the legislative design of Part IV of the PSOA regime if members of the public were permitted to bring court applications to review the decision of any ethics executive under Part IV of PSOA.
[41]. Part IV of the PSOA specifies who can request an inquiry. Members of the public do not have standing to request an inquiry or to challenge these determinations by the Commissioner.
[42]. I find therefore, that Democracy Watch does not have standing to bring this Application.
[43]. In light of my finding on this issue, it is not necessary to address the issue of justiciability. However, I will do so for the sake of completeness.
Justiciability
[44]. The Respondent submits that this court lacks jurisdiction under s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), because
a. the issues arise out of a private employment relationship that does not involve the exercise of a statutory power, and
b. the courts have held that a decision not to conduct an inquiry is not justiciable, except for bad faith or improper purpose.
[45]. The Applicant submits that justiciability of an issue is linked to the “concern about the proper role of the courts and their constitutional relationship to the other branches of government”.17
[46]. The Applicant asserts that the application raises serious, justiciable issues concerning the transparency of quasi-judicial processes and the accountability of public officials which values are essential to a functioning democracy.18
[47]. The Applicant has alleged that the Commissioner, acting in his role as ethics executive, made inquiries in respect of the conduct of French, Orsini, O’Toole, and Harrington.
[48]. The Respondent disputes this and asserts that no such inquiry had been conducted.
[49]. A determination of this issue is relevant in the analysis of justiciability.
Did the Commissioner conduct an inquiry under Part IV of the PSOA?
[50]. The basic facts are undisputed.
[51]. The Integrity Commissioner conducted an investigation under the MIA regarding the conduct of Premier Ford. He utilized his power to issue summonses for two witnesses, one of whom was Orsini. French, Orsini, O’Toole and Harrington were 4 of the 21 witnesses that the Commissioner interviewed.
[52]. I note that if the Integrity Commissioner was acting under Part IV of the PSOA he would not have any power to summons witnesses.
[53]. It is correct that in the Ford Report the Integrity Commissioner made comments about the conduct of Orsini, French, O’Toole and Harrington. However, investigations taken under one statutory power, cannot, without proper notice, be held to be taken for a totally different purpose under a totally different statute. Among other things, it would be procedurally unfair to those individuals.
[54]. There is no evidence that the Integrity Commissioner invoked his power under Part IV of the PSOA to conduct inquiries regarding the four individuals in question.
[55]. Further, at the time that the Integrity Commissioner conducted the investigation under the MIA, he was not the ethics executive for secretaries to Cabinet. The ethics executive for Orsini at that time was the Conflict of Interest Commissioner, and there is no evidence that this commissioner took part in any way in the Ford investigation.
[56]. I find that neither the Integrity Commissioner, nor the Conflict of Interest Commissioner conducted any inquiry regarding the conduct of Orsini, French, O’Toole or Harrington under Part IV of the PSOA.
[57]. I turn now to the analysis as to the issue of justiciability.
Analysis of Justiciability
[58]. Part IV of the PSOA is directly linked to the public servant’s employment relationship. The Commissioner’s role under the PSOA when he/she makes determinations regarding employee compliance with ethical obligations is part of the private employment relationship between the government and its employees.
[59]. The Supreme Court has noted, “[w]here a public employee is employed under a contract of employment…the applicable law governing his or her dismissal is the law of contract, not general principles arising out of public law”.19
[60]. Are public law remedies available in the circumstances of this Application?
(A) Are Public Law Remedies Available?
[61]. The relevant factors were described by the Court of Appeal in Setia v. Appleby College20 and include:
a. the character of the matter for which review is sought;
b. the nature of the decision-maker and its responsibilities;
c. the extent to which a decision is founded in and shaped by law as opposed to private discretion;
d. the body’s relationship to other statutory schemes or other parts of government;
e. the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;
f. the suitability of public law remedies;
g. the existence of a compulsory power;
h. an “exceptional” category of cases where the conduct has attained a serious public dimension.
[62]. After considering those factors, I find that public law remedies are not available in these circumstances because when the Commissioner functions under Part IV of the PSOA:
a. He functions within the contractual relationship between employee and employer;
b. His decision as to whether to conduct an inquiry is highly discretionary;
c. The Commissioner is independent of the government and reports to the Legislature;
d. His function is limited to conducting the inquiry and to providing recommendations to the ethics executive; he has no power to implement such recommendations;
e. He has no statutory powers of compulsion; and
f. Found, as it is, in the employment relationship of the people involved, there is nothing exceptional in this case. It has no serious public dimension.
[63]. I find that inquiries under Part IV of the PSOA are essentially an employment law function, and that public law remedies are not available in these circumstances. In the absence of an available public remedy there is no justiciable issue. There is nothing for the court to decide.
[64]. Having so concluded, I find that the application must also fail on this ground. However, I will also analyze whether the Commissioner’s actions constituted an exercise or non-exercise of a statutory power, that might be subject to judicial review under s.2(1) of the JRPA.
[65]. I will first analyze whether the conducting of an inquiry and making of determinations are the exercise of a statutory power.
(B) Is the Conducting of an Inquiry and Making Determinations an Exercise of a Statutory Power?
[66]. A Statutory Power is defined as follows under s. 1 of the JRPA:
“statutory power” means a power or right conferred by or under a statute,
(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,
(b) to exercise a statutory power of decision,
(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.
[67]. Clearly the Commissioner was not making any regulation or giving any direction that would have the force as subordinate legislation, so subsection (a) does not apply here.
[68]. Turning to subsections (c) and (d), I note that, under Part IV of the PSOA, there is no statutory power to issue summonses or otherwise compel cooperation with an inquiry.
[69]. Further, the “determinations” made by the Commissioner do not have any binding effect on the public servant; instead, they are recommendations to the public servant’s supervisor, who under ss. 34 and 49 of the PSOA, are responsible for disciplinary measures.
[70]. Further, under the PSOA it is not an offence to contravene a conflict of interest rule, nor are sanctions such as fines or administrative monetary penalties available.
[71]. Disciplinary measures are limited by statute to employment related discipline and are referred to in s. 70 as “suspension” and “dismissal”.
[72]. With respect to subsection (b), the courts have held that a public body performing a strictly private function of dealing with employees with respect to their employment is not a statutory power of decision.
[73]. In Association of Professors of the University of Ottawa v. University of Ottawa21 the Divisional Court held that the decision by the University of Ottawa to fix salaries of non-unionized employees was not a public function, but related to the University’s private law obligations as an employer, and was therefore not a “statutory power” within the meaning of the JRPA.
[74]. Similarly, I find that the conducting of “inquiries” and the making of “determinations” under Part IV of the PSOA does not involve the exercise of a “statutory power”.
[75]. The question that next arises is whether the decision to not conduct an inquiry is subject to judicial review.
(C) Decision to Not Conduct an Inquiry
[76]. I have found that neither Commissioner conducted an inquiry under Part IV of the PSOA. In this Application, Democracy Watch argued in the alternative that it seeks to challenge the decision by the Commissioner not to conduct an inquiry.
[77]. This court has held that where an administrative official declines to take an administrative action that does not affect an applicant’s rights or carry legal consequences, then that action is not amendable to judicial review by that applicant, even where there is not an alternative mechanism for that applicant to bring the matter before the courts.22
[78]. In the absence of a public complaints mechanism and a clear legislative limit on discretion, that discretion is unconstrained, save with respect to bad faith or improper purpose, neither of which is alleged here.
[79]. That situation is contrasted with the Federal Court case, that involved a challenge brought by Democracy Watch to a decision of the Federal Commissioner of Lobbying
not to investigate a complaint regarding the Aga Khan’s hosting the Prime Minister and others on a private island in the Caribbean.23 The Court concluded that the non-exercise of the administrative action was reviewable because under the federal Lobbyists’ Code of Conduct, “[w]here a member of the public provides information to the Commissioner relating to compliance, the Commissioner is required to consider that information and determine whether an investigation is necessary.”24 In that case, there was both a public complaints mechanism and a clear legislative limit on discretion.
[80]. No such provisions exist under Part IV of the PSOA.
[81]. Therefore, the Commissioner’s decision to not conduct an inquiry in these circumstances is not subject to judicial review.
Summary
[82]. In summary I find that the Applicant does not have standing and the Application does not raise a justiciable issue.
Costs
[83]. The Respondent is the successful party and is entitled to a cost order. The Applicant is ordered to pay to the Respondent the sum of $10,000.00 fixed inclusive of HST.
D. Edwards. J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Lederer J.
Released: October 19, 2020
CITATION: Democracy Watch v. Ontario Integrity Commissioner, 2020 ONSC 6081
DIVISIONAL COURT FILE NO.: 548/19
DATE: 2020/10/19
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lederer, D. Edwards JJ.
B E T W E E N:
Democracy Watch
Applicant
- and –
Ontario Integrity Commissioner
Respondent
REASONS FOR JUDGMENT
Released: October 19, 2020
Footnotes
- MIA, s. 31
- MIA, s. 31(2).
- MIA, s. 31(2)(b), 31(5)-(6).
- MIA, s. 31(3)(c).
- PSOA, s. 56.
- PSOA, s. 65(4)
- PSOA, ss. 65(5), 69(5).
- PSOA, s. 68.
- PSOA, s. 62.
- Restoring Trust, Transparency and Accountability Act, S.O. 2018, c. 17, Sched. 35.
- Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45
- PSOA, s. 65(1) and s. 69(1).
- PSOA, s. 65(2) and s. 69(2).
- PSOA, s. 65(3) and s. 69(3).
- PSOA, s. 65(4) and s. 69(4).
- See, e.g., s. 25 of the Health Professions Procedural Code under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
- Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, 2012 SCC45 at para 42.
- Canada (Information Commissioner) v. Canada (Minister of national defence), 2011 SCC 25 at para 80.
- Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 81.
- Setia v. Appleby College, 2013 ONCA 753 at para. 34.
- Association of Professors of the University of Ottawa v. University of Ottawa, 2018 ONSC 1191 at paras. 5-15.
- Dolan v. Ontario (Civilian Commission on Police Services), 2011 ONSC 1376 at paras.58-61, 86-87, 97.
- Democracy Watch v. Canada (Attorney General), 2019 FC 388 at paras. 103-106, (appeal to FCA pending).
- Ibid. at para. 104.